Court: Judges must avoid appearance of bias

WASHINGTON -- The Supreme Court enhanced the ability of litigants to challenge judges as potentially biased because of campaign contributions, as it ruled 5-4 that a West Virginia judge who won election with big-money support from a coal company executive should have sat out the company's case.

The high court for the first time set down a rule for disqualifications arising from money judges receive as they campaign for election to the bench. The court said judges must pull out of a dispute when "a serious risk of actual bias" arises because "a person with a personal stake in a particular case had a significant and disproportionate influence" in getting the judge on the bench to hear the case.

Numerous questions remain about how the majority's new rule may affect the millions of dollars spent on state judicial elections nationwide or requests in specific cases for judges to sit out. Thirty-nine states elect at least some of their judges.

Writing for the majority, Justice Anthony Kennedy emphasized the importance of public confidence in the courts and objective criteria to avoid the appearance of bias, as well as actual bias. Dissenting justices complained that the majority's standard was too vague. Chief Justice John Roberts, writing for dissenters, offered 40 questions raised by the majority opinion, including "How do we determine whether a given (campaign) expenditure is 'disproportionate'? Disproportionate to what?"

Monday's groundbreaking decision comes amid increasing debate over potential corruption in state judicial elections by wealthy contributors.

The Kennedy majority acknowledged that its standard would have to be worked out in lower courts in future cases. In the West Virginia case, however, Kennedy said it was clear that constitutional due process of law was violated when state Supreme Court Justice Brent Benjamin cast the deciding vote to overturn a $50 million jury verdict against a company whose chief executive had heavily backed Benjamin in an election.

CEO Don Blankenship had contributed $3 million to unseat incumbent Democratic Judge Warren McGraw in his 2004 race against Benjamin, a Republican. Two years earlier, Blankenship's A.T. Massey Coal had lost a fraud lawsuit to Hugh Caperton and his Harman Mining Co.

Justice Kennedy noted that the amount Blankenship spent in the race far exceeded the total spent by all other Benjamin supporters and by Benjamin himself.

He also noted that Benjamin had said he did not feel beholden to Blankenship and could be fair in the appeal by Blankenship's Massey Coal. Yet, Kennedy said that more is required than a judge's subjective assessment of the situation.

Kennedy termed the Blankenship-Benjamin situation "extreme," largely because of the $3 million amount and the timing of the contribution as the case was on appeal. "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal," Kennedy said, "but this is an exceptional case.

"(T)here is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case" as it was pending.

Caperton's effort to restore the $50 million verdict of a Boone County jury now returns to West Virginia courts.

The larger question is how Monday's ruling will affect state court rules on disqualifications. Many states, like West Virginia, had left a decision regarding disqualification up to the individual judge. Kennedy's decision would require a more objective test.

"It is a narrow decision, but it breaks new constitutional ground," said James Sample, a lawyer with the Brennan Center for Justice, which tracks money in state judicial elections and had sided with Caperton.

Sample said states would now determine how the specifics of the new rule are implemented, for example, through setting up separate panels to review a judge's decision on whether to disqualify, or by establishing a percentage of campaign money that would trigger scrutiny.

Joining Kennedy were liberal justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Dissenting with Roberts were fellow conservatives justices Antonin Scalia, Clarence Thomas and Samuel Alito.